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A further analysis of Hitachi v Sisk: is serial adjudication like lingchi?

May 2, 2019 | Silver Shemmings

This case concerned the analysis of whether the eight dispute brought via adjudication was “the same, or substantially the same” as the second, so as to be caught by paragraph 9(2) of The Scheme.

Mr Pontin, the adjudicator in both cases, observed at the outset of A8 and in response to the jurisdictional challenge raised by Hitachi:

“In the Second Adjudication I decided that Event 1176 was a Variation that required valuation. Thus I cannot adjudicate now on whether Event 1176 was or was not a Variation as that has been decided.

In addition I decided that for the purposes of Application 6 that Sisk had not complied with the provisions of clause 30.1 and stated that  ‘I do not have sufficient details to value the works and hence for the purposes of Payment Notice 6 my value is £nil.’ The fact that ‘£nil’ was entered onto my spreadsheet does not alter the meaning of the words used in the body of my Decision. I could not conclude a value for Event 1176 in that Notice and as a fact I did not decide a value for event 1176.”

Stuart-Smith J agreed, and applied the following two stage test to arrive at the same result:

  • What did the adjudicator in the second adjudication decide about event 1176?
  • Is the dispute about event 1176 referred to the eighth adjudicator the same or substantially the same as the dispute decided by the second adjudicator?


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